JUDGMENT 1. - This appeal is directed against the judgment dated 09.12.1996 passed by the Additional Sessions Judge, Raisinghnagar convicting the appellants Sukhdev Singh and Baljinder Singh for offence under Sections 302, 302/34 Indian Penal Code respectively. Both of them have been sentenced to imprisonment for life and to pay a fine of Rs. 100/-and in default of payment to further undergo 10 months simple imprisonment. Both of them have also been convicted for the offence under Sections 324 and 323 Indian Penal Code. 2. Briefly stated the prosecution case is that on 21st July, 1994 at about 8.30 AM PW-3 Prakash Singh lodged an oral First Information Report stating inter alia that on 21st of July, 1994 at about 8.30 PM he heard the out cry of the wife of Mastan Singh. When he rushed to the spot, PW-6 Baljinder Singh disclosed that Mastan Singh and Richpal Singh had gone to the shop for marketing where a quarrel had taken place. He went to the shop of Nandram. Accused Lal Singh, Baljlnder Singh and Sukhdev Singh were beating to his son Richpal Singh and Mastan Singh by 'Gandasi'. Lal Singh was exhorting them. Receiving the injuries Richpal Singh and Mastan Singh fell down on the ground. Baljlnder Singh and Sukhdev Singh attacked on him. Sukhdev Singh gave a 'Gandasi' blow on his head, Baljlnder Singh also gave a blow of 'Gandasi' which struck on his thigh. He also sustained injuries on the other parts of the body. Hearing the out cry, PW-4 Jagir Singh, PW-7 Sohanlal, PW-11 Nandram arrived at the spot and intervened. Mastan Singh also sustained injuries. He also stated that as during night no means were available, his both the sons Richpal Singh and Mastan Singh were taken to the hospital at Anoopgarh in the morning. The police registered a case for offence under Sections 307, 324, 323 Indian Penal Code and proceeded with the investigation. On 28.07.1994, Richpal Singh died in the hospital at Jaipur and as such offence under Section 302 Indian Penal Code was added. After usual investigation, police Lald chargesheet against the accused persons for offence under Sections 302, 302/34, 324, 323 Indian Penal Code. 3. The appellants denied the charges leveled against them and claimed trial. The prosecution in support of the case examined as many as 12 witnesses. After usual investigation, police Lald chargesheet against the accused persons for offence under Sections 302, 302/34, 324, 323 Indian Penal Code. 3. The appellants denied the charges leveled against them and claimed trial. The prosecution in support of the case examined as many as 12 witnesses. In the statement under Section 313 Criminal Procedure Code the appellants denied the correctness of the prosecution evidence appearing against them. They stated that on 20th of July, 1994 they had gone to village 18 APD to enquire about, the labourers. Therefore, they went to the shop for purchasing. On the shop, Prakash Singh, Richpal Singh and Mastan Singh took quarrel with them. They threshed them. In the scuffle Richpal Singh also sustained injuries. They also stated that Lal Singh was also present on the spot. Analysing the evidence, the trial court held the appellants guilty of offence under Sections 302, 324 and 323 Indian Penal Code respectively and sentenced as noticed above. The trial court acquitted the accused Lal Singh. 4. We have scanned, scrutinised and evaluated the prosecution evidence exhaustively and considered the rival contentions. The prosecution in support of the case has produced eye witnesses namely PW-1 Nandram, PW-2 Mastan Singh, PW-3 Prakash, PW-4 Jagir Singh, PW-6 Balwinder Kaur and PW-7 Sohan Singh. The prosecution has also produced the evidence of recovery of blood stained 'Gandasa' from the possession of Sukhdev Singh. It is not in dispute that Richpal Singh died of homicidal death. The presence of the injured eye witnesses PW-2 Mastan Singh and PW-3 Prakash Singh is also not disputed. It Is significant to notice that just after the incident at about 11.10 PM, the appellant Baljinder Singh also lodged a First Information Report which was registered as FIR No. 210/1994. He stated that he alongwith Sukhdev Singh had gone to 18 APD to enquire about the labourers. When they were on the shop of Nandram, Pratap Singh and Richpal Singh also arrived on the spot armed with 'Gandasis'. They enquired from them the reason for their visit to the village. They disclosed that they had gone to enquire about labourers. He also stated that there was a quarrel between them and Prakash Singh etc. with respect to the land. He also stated that Prakash Singh gave a 'Gandasi' blow on his head. They enquired from them the reason for their visit to the village. They disclosed that they had gone to enquire about labourers. He also stated that there was a quarrel between them and Prakash Singh etc. with respect to the land. He also stated that Prakash Singh gave a 'Gandasi' blow on his head. Mastan Singh and Richpal Singh gave blow by 'Lathis' and 'Gandasi' on account of which, an injury was sustained on the palm. On this information, police registered a case for offence under Sections 324, 323 Indian Penal Code. It is stated that subsequently the police filed the Final Report in the said case. However, on protest, a case was registered against Prakash Singh and Mastan Singh. It is stated at Bar that cognizance was taken against both the persons and trial took place. In the trial both the persons have been acquitted. 5. It is contended by Mr. H.S.S. Kharlia, learned counsel for the appellant that FIR No. 210/1994 was lodged by the appellant Baljinder Singh prior to the lodging of FIR in the instant case by the complainant party. According to the FIR given by the accused persons, the appellant Baljinder Singh caused one head injury alongwith some injuries on his person and Sukhdev Singh on his person caused some other injuries on the part of the body. The injury on the person of the Sukhdev Singh has been found grievous in nature. It is submitted that the prosecution has not explained the injuries on the person of Prakash Singh and Sukhdev Singh. It is argued by the learned counsel for the appellants that appellants acted in right on private defence and as such their conviction under Sections 302, 302/34 Indian Penal Code iis not sustainable. In the alternative, it is submitted that appellant Sukhdev Singh has caused only one simple injury and as such he may at the most be held guilty for his individual act punishable under Section 324 Indian Penal Code. On the other hand, learned Public Prosecutor and Mr. N.L. Joshi, counsel for the complainant has supported the judgment of the trial court. 6. Before we proceed to deal with the rival contentions, it will be appropriate to indicate the medical evidence with respect to the complainant party as well as of the accused persons. 7. PW-5 Dr. On the other hand, learned Public Prosecutor and Mr. N.L. Joshi, counsel for the complainant has supported the judgment of the trial court. 6. Before we proceed to deal with the rival contentions, it will be appropriate to indicate the medical evidence with respect to the complainant party as well as of the accused persons. 7. PW-5 Dr. Ratanlal Agarwal has stated that on 21st of July, 1994, he was posted as Incharge Medical Officer, Primary Health Centre, Anoopgarh. On the request of police, he examined injured Prakash Singh, Richpal Singh and Mastan Singh. He noticed following injuries on the person of Richpal Singh:Incised wound with clotted blood 3 cm x 1 cm x bone deep on left parietal area of scalp.He has proved the injury report Exhibit P-6. He also stated that injury was caused by a sharp edged weapon. In his opinion, the head injury could endanger to life. On the same day, he examined Mastan Singh and prepared the injury report Exhibit P-7. He noticed the following injuries: 1. Incised wound with blood clotted 10 cm x 2 cm x bone deep on the back of the neck placed vertically. 2. Incised wound with clotted blood 3 cm x 1 cm x bone deep on middle of right leg. 3. Bruise 4x2 cm on left latsae thigh. 4. Abrasion 4 x 1/2 cm on lower ⅓ of left leg. 5. Abrasion 5 x 1/2 cm on left mid leg outer side. 6. Bruise 8 x 2cm on left hip. In his opinion, injury Nos. 1 and 2 were simple in nature caused by sharp edged weapon, Injury Nos. 3 to 6 were simple in nature caused by blunt object. He also stated that on the same day, he examined Prakash Singh and prepared the injury report Exhibit P-10. He noticed the following injuries on his person: 1. Incised wound 4 x 1 x 1 cm on left scapular region. 2. Incised wound 3 x 1/2 x 3/4 cm on left shoulder. 3. Bruise with swelling 8x 6cm on upper 1/4 of left forearm. 4. Abrasion 3 x 2 cm on left backbone above sacrum. 5. Bruise 2 x 2 cm on right forehead. He stated that injuries No. 1 and 2 were simple in nature caused by sharp edged weapon. Injuries No. 3, 4 and 5 were simple in nature caused by blunt object. 4. Abrasion 3 x 2 cm on left backbone above sacrum. 5. Bruise 2 x 2 cm on right forehead. He stated that injuries No. 1 and 2 were simple in nature caused by sharp edged weapon. Injuries No. 3, 4 and 5 were simple in nature caused by blunt object. In the cross-examination, he admitted that on the same day, he examined the injuries of accused Baljinder Singh and Sukhdev Singh. He has proved the injury report Exhibit D-2 of Baljinder Singh. He noticed the following injuries on the person of Baljinder Singh: 1. Incised wound with clotted blood 5x 1 x 1 cm on centre of forehead. 2. Abrasion 3 x 1/4 cm on upper 1/2 of left arm. 3. Abrasion 3 x 1/4 cm on upper ⅓rd of left arm. 4. Abrasion 2 x 3/4 cm on mid left forearm. 5. Bruise 2 x 1/2 cm on left ring finger. 6. Abrasion 2 x 1 cm on left hip. 7. Abrasion 4 x 1/2 cm on left hill. 8. Abrasion 1 x 1 cm on right dorsum of hand. He has also proved the X-ray report Exhibit D-4 of Baljinder Singh. He has proved the injury report of Sukhdev Singh as Exhibit D-3. He noticed following injuries on the person of Sukhdev Singh: 1. Lacerated wound with bruise 2x2 cm on left wrist radial aspect. 2. Abrasion 2 x 1/2 cm on right wrist ulna aspect. He also proved the X-ray report Exhibit D-5 of Sukhdev Singh. He also stated that as the condition of Richpal Singh was deteriorating fast he recommended to take him at the hospital at Bikaner. 8. PW-12 Dr. P.C. Vyas has stated that on 28.7.1994 he was posted as Medical Jurist at Swai Man Singh Hospital at Jaipur. On the same day he conducted the post mortem of the dead body of Richpal Singh. He has proved the post mortem report Exhibit P-29. He noticed following injuries on his person: 1. Stitched wound 35 cm long having 40 stitches, extending from left frontal region, going, vertically backward involving left fronto parietal regions, then in V shaped manner going downwards and forwards reaching near tragus of left ear. 2. Stitched wound 3 cm long having 4 stitches, present on left parietal region, lateral to injury No. 1. 3. Wound of tracheastomy present on front of neck. 2. Stitched wound 3 cm long having 4 stitches, present on left parietal region, lateral to injury No. 1. 3. Wound of tracheastomy present on front of neck. In his opinion deceased Richpal Singh died as a result of injuries to skull and brain. He also opined that injury mentioned in the post mortem report was sufficient to cause death in ordinary course of nature. He also stated that all the injuries were antimortem in nature. 9. The prosecution has examined PW-1 Nandram, PW-2 Mastan Singh, PW-3 Prakash Singh, PW-4 Jagir Singh, PW-6 Balwinder Kaur and PW-7 Sohan Singh as eye witness. PW-1 Nandram has not supported the case of the prosecution and as such he has been declared hostile. PW-2 Mastan Singh is the brother of deceased and injured eye witness. PW-3 Prakash Singh is the father of the deceased and injured eye witness. 10. PW-2 Mastan Singh has stated that he alongwith his younger brother Rlchpal Singh had gone to the shop of Nandram for purchasing sweats etc. At about 8.30 PM when they reached in the Chowk near a Neem tree. Accused Lal Singh, Sukhdev Singh and Baljinder Singh arrived there armed with 'Gandasas'. Lal Singh exhorted, saying, ^^nq'keuks dks tku ls ekj nks budks tkus er nks A^^ Baljinder Singh gave a 'Gandasa' blow on his neck on account of which he fell down. Sukhdev Singh gave a 'Gandasa' blow on the head of his brother Rlchpal Singh from the sharp edged side on account of which he also fell down. Thereafter, Sukhdev Singh and Lal Singh thrashed them by 'Gandasas'. Hearing the out cry his father Prakash Singh arrived at the spot. Baljinder Singh, Sukhdev Singh and Lal Singh thrashed his father as well. His grandfather Jagir Singh, uncle Sohan Singh and Nandram also arrived at the spot. They challenged the accused persons. Seeing them, all the accused persons took their heels, thereafter, his uncle Sohanlal, grandfather Jagir Singh and his father Prakash Singh brought him and his brother Rlchpal Singh inside the house. Rlchpal Singh become unconscious on the spot. He gained consciousness on the next day in the hospital. He also stated that there was a land dispute between the parties. He further stated that his brother Richpal Singh was taken to the hospital at Anoopgarh and thereafter to Bikaner. From Bikaner he was taken to the hospital at Jaipur. Rlchpal Singh become unconscious on the spot. He gained consciousness on the next day in the hospital. He also stated that there was a land dispute between the parties. He further stated that his brother Richpal Singh was taken to the hospital at Anoopgarh and thereafter to Bikaner. From Bikaner he was taken to the hospital at Jaipur. In the cross-examination he denied the suggestion that Baljinder Singh and Sukhdev Singh visited the village to enquire about the labourers. He also denied the suggestion that his father Prakash Singh challenged saying ^^nq'eu vk x,^^. He also denied the suggestion that Prakash Singh caused injuries to Baljinder Singh and he caused injuries to Richpal Singh. He also denied the suggestion that Baljinder Singh tried to snatch sela from his hands and at that time he caused injuries on the neck and hand of Baljinder Singh. He also denied the suggestion that Sukhdev Singh sustained injuries because of the intervention. 11. PW-3 Prakash Singh has stated in the line of PW-2 Mastan Singh. He stated that hearing the out cry of Balwinder Kaur, wife of Mastan Singh, he went to his house. She reported that Richpal Singh and Mastan Singh have gone to the shop of Nandram and there a quarrel has taken place. He rushed to the shop of Nandram. When he reached in the Chowk near Neem tree, he found that Baljinder Singh, Lal Singh and Sukhdev Singh thrashing Richpal Singh and Mastan Singh by 'Gandasas'. When he challenged them, Baljinder Singh, Sukhdev Singh and Lal Singh came towards him. Sukhdev Singh gave a 'Gandasa' blow on his head. Baljinder Singh also caused injuries on his leg. Lal Singh was exhorting. In the cross-examination, he admitted that a land dispute was going on between them and the accused persons. He also admitted the existence of litigation between them for last 4 to 5 years. He also admitted that he reached on the spot one or two minutes after the incident. He also admitted that when he reached on the spot, his both sons i.e. Richpal Singh and Mastan Singh were lying on the ground. He also admitted on 20.7.1993 that Baljinder Singh lodged a FIR against him and his sons and in the said case they are facing trial. He also admitted that when he reached on the spot, his both sons i.e. Richpal Singh and Mastan Singh were lying on the ground. He also admitted on 20.7.1993 that Baljinder Singh lodged a FIR against him and his sons and in the said case they are facing trial. He denied the suggestion that Baljinder Singh and Sukhdev Singh were on the shop of Nandram for purchasing articles and at that time he alongwith him attacked on them. It appears that Prakash Singh had reached on the spot after actual blows alleged to have been given by the accused persons to the deceased. Thus, he cannot be said to be an eye witness of the actual assault. 12. PW-4 Jagir Singh is the grand father of the deceased. His statement is almost in the line of PW-3 Prakash Singh. PW-6 Balwinder Kaur is the wife of PW-2 Mastan Singh. She has stated that she had send her husband and brother in law Richpal Singh for purchasing certain articles from the shop of Nandram. After some time, she heard the hue and cry from the Chowk. She came out of the house and saw Lal Singh was exhorting and saying to kill enemies. Her out cry attracted her father in law Prakash Singh. She also stated that Lal Singh, Baljinder Singh and Sukhdev Singh thrashed Mastan Singh and Richapl Singh by 'Gandasas'. 13. PW-7 Sohan Singh is the brother of PW-4 Jagir Singh. He has also given the statement almost in the line of Jagir Singh. 14. PW-9 Bhanwar Singh, A.S.I. Police Station Anoopgarh has given some details of the investigation. PW-10 Banwarilal is Malkhana Incharge of the Police Station Anoopgarh. PW-11 Khiv Singh is Incharge of the Police Station Anoopgarh. He conducted the investigation. He stated that on 7.8.1994 he arrested Sukhdev Singh vide Exhibit P-24. He has also stated that Baljinder Singh was arrested on the same day vide Exhibit P-25. He also stated that on 9.8.1994 accused Sukhdev Singh while in custody gave an information Exhibit P-27 which led to the recovery of blood stained 'Gandasi' vide recovery memo Exhibit P-12. He also stated that Baljinder Singh also gave an information Exhibit P-26 leading to the recovery of a 'Gandasa' vide Exhibit P-14. He further stated that both the 'Gandasas' were packed and sealed on the spot. They were deposited with the malkhana. 15. He also stated that Baljinder Singh also gave an information Exhibit P-26 leading to the recovery of a 'Gandasa' vide Exhibit P-14. He further stated that both the 'Gandasas' were packed and sealed on the spot. They were deposited with the malkhana. 15. As far as the recovery of 'Gandasa' from Baljinder Singh is concerned, as per the F.S.L. report Exhibit P-31 has not been found to be stained with human blood. However, the 'Gandasi' recovered from the possession of Sukhdev Singh has been found to be stained with human blood. Thus the prosecution has succeeded in establishing the evidence of recovery of blood stained 'Gandasi' from the possession of Sukhdev Singh. 16. The presence and participation of the appellants in the assault is well established from the prosecution evidence. Infact, it is not disputed by the defence as it evidence from the narration in Exhibit D-6A. It is their own saying that they had gone to the abadi of chak 18 APD and there quarrel took place between Mastan Singh and deceased Richpal Singh. As the prosecution has not explained the injuries on the person of the accused, it problises the defence of the appellants. However, looking to the injuries caused to prosecution witnesses and the deceased, the appellant Sukhdev Singh has clearly exceeded the right of private defence. PW-2 Mastan Singh is an injured eye witness. He has categorically stated that the 'Gandasi' blow was given on the head of the Richpal Singh by Sukhdev Singh. He did not repeat the blow. Thus, in the facts and circumstances of the case, no intention can be attributed to Sukhdev Singh that he intended to cause murder of Richpal Singh. However, he can be clothed with the knowledge that the injuries caused by him may cause death in the ordinary course of nature. Thus, the appellants Sukhdev Singh is liable to be convicted for offence under Section 304-11 Indian Penal Code instead of Section 302 Indian Penal Code. However, the conviction of Baljinder Singh for offence under Section 302 with the add of Section 34 Indian Penal Code is not sustainable. A single injury has been caused to the deceased Richpal Singh which has been attributed to the Sukhdev Singh. Baljinder Singh has not caused any injury to the deceased Richpal Singh. However, the conviction of Baljinder Singh for offence under Section 302 with the add of Section 34 Indian Penal Code is not sustainable. A single injury has been caused to the deceased Richpal Singh which has been attributed to the Sukhdev Singh. Baljinder Singh has not caused any injury to the deceased Richpal Singh. As the prosecution has suppressed origin of the occurrence, it cannot be said that he intended to share common intention to commit murder with Sukhdev Singh. Thus, his conviction under Section 302/34 is not sustainable. He can be held guilty only for the offence under Sections 324 and 323 Indian Penal Code for causing injuries to Mastan Singh and Prakash Singh. 17. Consequently, this appeal is allowed. The conviction of the appellants Sukhdev Singh for offence under Section 302 Indian Penal Code and Baljinder Singh for offence under Section 302/34 Indian Penal Code is set aside. The appellant Sukhdev Singh is convicted for offence under Section 304-11 Indian Penal Code. He was arrested on 7.8.1994 and released on bail on 17.12.1995. Thus, he has remained in jail during trial for about 16 months. Thereafter, he has remained in bail during the pendency of the appeal for about four and half years. Thus, he has remained in jail for about six years. Thus, he is awarded the sentence for the period already undergone. The fine of Rs. 100/- remains intact. The sentence awarded to the appellant Baljinder Singh for offence under Sections 323 and 324 is reduced to the period already undergone. Appellant Baljinder Singh is on bail. His bail bond stands discharged. Appellant Sukhdev Singh is in jail. He shall be released forthwith, if not required in any other case.Appeal Partly Allowed. *******